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OPINION: Ohio Lawsuit Takes Aim at ICFs

February 8, 2018

by:

Pete Van Runkle, OHCA

Nearly two years ago, Disability Rights Ohio (DRO) sued the state of Ohio, alleging that ICFs of eight beds or more, sheltered workshops, and day programs are discriminatory. DRO’s complaint and subsequent documents are replete with vituperative words about ICFs and the disfavored day settings. Oddly, the ICFs DRO is targeting are those with eight or more beds, whereas more than 8 is the dividing line in Ohio statute.

DRO, a non-profit serving as Ohio’s Protection and Advocacy Agency, sued the state in 1989 in a similar manner, minus the claims about workshops and day services. After pending for 18 years, the case (Martin v. Taft) settled, netting the plaintiffs 1,500 additional waiver slots.

This time around, DRO upped the ante by importing national expert lawyers to beef up their attack, to the point where some have suggested that the outsiders now are driving the process.

The current lawsuit, Ball v. Kasich, seeks the same kind of result as the Martin case. It is widely viewed as an existential threat to ICFs, but the relief the plaintiffs request doesn’t call for their elimination.

Certainly, the language used by the plaintiffs and, more recently, an amicus brief from the ARC, is irritating to ICF providers. ICFs in Ohio, and particularly larger ICFs, are wary because they have been under pressure for a long time. The state even unsuccessfully tried a frontal assault on ICFs (canceling them as an optional Medicaid service) in 2009.

DRO’s primary demands are budgetary: more funding for waivers and community employment services. DRO also wants more access for individuals in ICFs to employment services and somehow to make the state do a better job of explaining service options to people in or considering admission to an ICF. Ohio began pre-admission and “options” counseling after DRO first threatened to sue in 2014, along with adding a bevy of state-funded waivers tied to diversion or exit from ICFs, but DRO is not satisfied with these measures.

DRO filed the lawsuit at the end of March 2016, but it is only now at the stage where the judge decides whether to let the case go forward as a class action. Class certification is hotly contested. DRO overstated the number of people who truly want to move out of larger ICFs, so they dropped from their requested class individuals “who have not documented their opposition to receiving integrated, community-based services.” The judge has yet to make a decision on class certification.

The state is not a friendly defendant. Early on, they tried to have DRO’s suit thrown out because the decade-old Martin settlement added waivers, arguing that DRO “got their share” back then. The judge rejected this argument, but the state is not rolling over.

Ball v. Kasich has attracted additional participants. First the association representing county boards of developmental disabilities and later a group of parents with children in large ICFs asked to intervene as defendants. Over the plaintiffs’ objections, the judge last August allowed both the county boards and the parents into the case. With local levy dollars, the county boards in Ohio fund most waiver services and operate sheltered workshops. Relative to allowing the parents to intervene, the judge noted that parents ended up participating in similar cases in Illinois and Pennsylvania.

As mentioned above, last month ARC came in as an amicus, which means they can argue a certain point, not become an actual party to the case. ARC’s brief supported certifying the class. Earlier, VOR also got involved as amicus, backing the parents’ motion to intervene.

As 2017 ended, ANCOR affiliate OPRA also moved to intervene, based on the threat to ICFs. Naturally, the plaintiffs are fighting this intervention too, arguing that OPRA’s motion is late-arriving and their position is duplicative of others.

A settlement almost surely will be the end result of the case – whenever that happens. The state’s problem is budgetary. They need to negotiate how much money they are willing to pay to make the annoyance of defending the lawsuit go away. DRO’s motivation is to keep the pain coming to enhance their leverage.

From an ICF perspective, the true threat is further pressure on census. The verbal abuse goes with the territory, however galling it may be. Ohio for years has been pressing ICF operators to downsize their buildings or to “convert” ICF beds into waiver slots, part of that pressure coming from ancillary administrative measures such as pre-admission and options counseling and reimbursement penalties. Informally, the state and the county boards seem to have squeezed down referrals to ICFs, particularly larger ones.

The DRO case is at bottom another log or two on this fire, not an effort to eliminate ICFs in one fell swoop. The trend toward shrinking the ICF footprint and growing home and community-based services will continue regardless.